51 F. 796 -

51 F1d 796

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Case Text

Jim)DAL BEPOBTJll&,

voL 51.

dOctrine of refatloptaa fiction of law adopted bytM courts solely for the pnrpoaesot justtce,an.d Is only applied tor the security and protection of p8!'80DS who stand tn some privity with the party that instituted the pro-

See\, alllQ, Heath v. 12 Johns. 140. ,The insurance in no relation of privity with the parinstituted the,proceedings in the appointment ora reo.eh':er.,lt that no court has}wer held that a forfeiture may an application of the dQQtrine would deibM I .thar, than ()f justice. The property had and.a right of action ,for its loss hl;1d arisen, before the WtUl appointed. No rule ,of and po pl'inciple of justice will permit the'defendant to escape liability tqerefor on the grounds set forth i,n this1paragraph ofapswer" ',l'he property having been destroyed, the 0c.tQ8: as to it w8:S ineffective. 'As to the property insured, 'no change of title or possession had occurred before' the fire. after unles!! the decree could change the title property Which had already ceased to That the no seems too plain for serious debate.

against Pullman's Palace for certain moneys l.ost while on a sleeper. Car .QOXPPli'1;ly, to ,,' Verdict for defendant directed. ()f this before WALLACE, Circuit Judge, and ajury, it by testimony offered for the plaintiff, that while plaintiff wa.s occupyipg a berth one of the ,sleeping coaches of the defendant, asa passenger upon the Delaware & Lackawanna Railroad Company on Hoboken to Binghamton, in the state of New York, the sum pf $4,114, belonging to him, was stolen from the berth. The evidence tended to show that bll, had procured this money at Hoboken for the purpose of buying ca,ttle in the vicinity of Owego, where he resided, where it was impracticable to obtain currency except in small sums; tllat he inclosed the money in: an envelope which he carried in an inside pocket of his vest: a4ap'ted for the purpose; that he and acornpanion occupied together a lower bertli intbe coach, the sleeping at th&

BARROTT tI. l'ULLMAN'S PALACE CAR CO.

797

side near the aisle; that when he retired at night he placed his vest under the pillow of his bed; and that in the morning, when he arose to dress, the vest and the money were gone, and could not be found by the defendant's -employes,although diligent search was immediateJy made. The plaintiff testified, among other things, that when he started upon the trip from Hoboken heput some $35 Qr $40 in his pocketbook for ·home, and the money thus carried was not disturbed. The theory of the action was that the plaintiff's money was stolen by'some person who was enabled to accomplish the theft through the rieglig!lllce of. the di5fendant. 'Ji1raf/lk A. D(ffl'"(JW and Alexander Cumming, for plaintiff. Alexander Green and Allan McCulloh, for defendant.

«

WALVACEI'Circuit Judge, (charging jury.) It is my duty to instruct you that th.e plaintifi'is not to have.a verdict, upon any theory of the fa<:ls, for the loss of any money which he was not carrying as a passenger for the purposes of his journey. The defendant, as a sleeping car COllfpanY,.:Wlis not common carrier or an insurer. By accepting compensation: fo'r furnishing sleeping accommodations to the plaintiff, the assumed the obligation to exercise reasonable care to frdmloss .or .ibjdrJall snch property as plaintiff was entitled to carry with· him liSe's: passenger. Every traveler, by railroad or other conveyance, is entitled to carry with him such a sum of money as is reasonably appropriate, in view of his circumstances and condition in life, to provide fui' 'his' "'itI1ts and cohHort during his contemplated journey. If it is lost, or any part. of it, while in any sense within the custody of sleeping :eat 'company ,by the negligence of the officers and servants of tb:e cohipany,atid; without contl'ibutirig negligence on the part of the passerigM;the sleeping car company is liable. If the passenger chooses tifcarry -any-other money, he dbes so at his own risk, unless some special circumstances exist to impose some peculiar duty u'ponthe company. No such Elpecial circumstances have been shown in this case. Thecircthnstance'that the plaintiff had put aside for the expenses of his trip the money which he carried in his pocketbook indicates quite cogently what sum he himself considered as adequate for his needs; and, if you conclude that this was all the money he was entitled to carry for his traveling expenses, he has sustained no loss for which the defendant is responsible, and the defendant should have a verdict.

Bl:Oh1fldvr:iCOOilTiOi' APPE,AL8.-.JURilSDICTION-REVENUB ApPzi... ." , p. 828,) a juillrment of Under the judiciary act of March 3 1891, (26 St. at the circuit court, on an appe,al from the decision of the'l)oard of general appraisers, is reviewable, not in'thesupreme court, but in the cil::cuit cou,rtef appeals, tM case being one ,revenue laws."
B.

An,appeal by the States from the judgment of the circuit court, on an a'll,pe,aui',0111 th,e ,00,ard, Oflte,n,eral ',appra,isers,,can, only ,b"e allowed l?n the applieatlpn c!l'lId thll,J)i!'me Of the attoroey general, whe? the record does not show that 'the C\lt1rt IS of opInion that the question involved 18 of' such importance as to reo :' 'quire anappea!. But Where such an appeal is, irregularlY taken, in tbe name of :",the, cqU,Elctor port,by the (}jlltrict attorney, and the parties admit, in thecir· cuit' clQun of appeals, that Bame was In fact taken by direction of the attorney genappeal may be aQI,&,Dded by substituti!1g, his ,ersl,and oonsent that, tlbe nlloQle .tort\lat tbe oollectQr, the cirouit oourt of appealsh!loS jurisdiction to allow 'such amendment. ' , to address tbeoitatioIl, to the ,lmpo,t1.ing of to the individual partners, bilt suoh irregularity is oured by the appearance of tbepartners in tllle appellate court without making any ob:', 'JClilItioIl. ' ' , : :

'

'- .APt>it!.u,:...CiUtION-PABTNIllRSJlIP. Onauoh' an appeal it is 'all irregularity

AppeaHrOni the Circuit. Court of the United States for the District of Massachusetts. '''!,If! ! , Petition for a review of:. decision of th9 bOllrd of :genel'alll,ppraisers assessing a duty of 12 cents a pound on,oertain goat hair. The circuit court reversed such decision,hOldingtbat the hair ,was embraced in the free list. 48 Fed. Rep. 6aO. The UnitedState!l appeals. Reversed. F'rct7lkD.AUen. U.S. Atty., and HfffI3'Y .A. Wyman, Asst. U. Atty. JowUih P.7\&cke'r, for appellees. Befute,.GRAY, Circuit'Justice. PUTNAM, Circuit Judge, and NELSON, District Judge.

GRAY, Circuit Justioe. This was a petition to the circuit court by .Tohn Hopewt>ln, Jr., Ollndus F.Kendall; and Frank Hopewell, representing that theywere 4'partners in trade; doing business in Boaton under the firm name of L. C. Chase & Co.," and signed, "L. C. Chase & Co., Petitioners, by J. P. Tucker. Attorney," praying for a review, untler the act of June 10, 1890, c. 407, § 15, of a decision of the board of general appraisers, affirming a: decision of the collector of the port of Boston and Charlestown, assessing on two bales of goat's hair, imported by the ptJtitioners, a duty at the rate of 12 cents a pound, under paragraphs 377 and 384 of Schedule K of the tariff' act of October 1, 1890, c. 1244, imposing such a duty on "hair of the camel, goat, alpaca, and other like animals." The petitioners, having duly protested against the assessment, contended that their goods should have been